Unpublished Disposition, 908 F.2d 977 (9th Cir. 1981)

MEMORANDUM^* 

Arel Price petitions for review of a decision of the Benefits Review Board, which excluded his wages as a commercial fisherman from the calculation of his pre-injury average weekly wages. We grant the petition, reverse, and remand.

FACTUAL AND PROCEDURAL BACKGROUND

In March, 1979, Arel Price injured his back and elbow in a fall from a broken ladder rung in the course of his employment. During 1978, the year before his injury, Price had worked as a longshoreman for 39 weeks and as a commercial fisherman for 13 weeks. He earned $22,246.41 as a longshoreman and $10,403.52 as a commercial fisherman. After his injury and subsequent surgery, Price was able to do light duty jobs on the waterfront but was unable to work as many hours and unable to perform the same types of work.

In 1986, an Administrative Law Judge (ALJ) awarded Price compensation for permanent partial disability from August 26, 1981. The ALJ computed Price's benefits under section 10(a) of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 910(a), which applies if the injured employee worked "in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of the year immediately preceding his injury." The ALJ completely failed to discuss the applicability of section 10(c), which applies if the two preceding methods of arriving at average annual earnings cannot "reasonably and fairly be applied" and explicitly allows the inclusion of wages from other employment, including self-employment, in addition to the injured person's main employment.

Applying section 10(a), the ALJ found that Price's work as a commercial fisherman was too dissimilar to his work as a longshoreman to be considered comparable work for inclusion in calculating average earnings. Price's wages from 39 weeks of longshore work were then spread over a year in determining his weekly earnings. His pre-injury weekly earnings were found to be $567.50 under this formula; his loss of earning capacity was ultimately determined to be $236.55 per week, with benefits to be calculated based on this loss.

The Benefits Review Board affirmed the ALJ, although it applied different reasoning. The Board stated that section 10(c) of the Act is limited to seasonal, intermittent, and discontinuous work, and therefore did not apply to Price. All parties agree that this was an error of law. The Board also found that, under section 10(a), Price's work as a commercial fisherman was too different from his work as a longshoreman to be combined as comparable wages in computing pre-injury earnings. Price timely sought review.

DISCUSSION

All parties agree that the Board erred as a matter of law in finding that section 10(c) only applies to seasonal, intermittent, or discontinuous labor. No case holds that this is the only application of 10(c); rather, the Board's interpretation is counter to the plain language of the statute and the relevant caselaw, which emphasizes that 10(c) "must be determined pursuant to subsection (c) if (a) or (b) cannot 'reasonably or fairly be [applied.].' " Duncanson-Harrelson Co. v. Director, OWCP, 686 F.2d 1336, 1342 (9th Cir. 1982), vacated on other grounds, 462 U.S. 1101 (1983), aff'd in relevant part, 713 F.2d 462 (9th Cir. 1983) (emphasis added).

The ALJ's determination that Price's 39 weeks of longshore work was "substantially the whole of the year immediately preceding his injury" was just the type of mechanical application of section 10(a) which our cases prohibit. "The section does not provide that every case must be measured by subdivisions (a) or (b) if it be possible to force the transaction into the formulae which those subdivisions prescribe.... On the contrary, it provides that subdivision (c) is to be employed whenever (a) or (b) cannot reasonably and fairly be applied." Marshall v. Andrew Mahony Co., 56 F.2d 74, 78 (9th Cir. 1932). See also Duncansson-Harrelson, supra, at 1342-43 (applying 10(c) to avoid overcompensation under 10(a)).

Petitioner Price and Respondent Director, Office of Workers' Compensation Programs, are in full agreement that the wages should have been calculated under section 10(c); both parties also agree that as a matter of law under this section his actual earnings based on both types of employment averaged $627.88. Respondent Saif Corporation argues that the Administrative Law Judge implicitly determined that section 10(c) did not apply because Price was hired out of sympathy by an old friend and failed to establish the reasonable value of his services.

This argument is without merit. The ALJ merely noted in passing that Price's employer in his fishing job was an old friend and stated: "In this matter, the Claimant worked 39 weeks at his longshoreman's job for the Employer, and 13 weeks as a commercial fisherman. The income from two employers may be combined in calculating the average weekly wage, provided that the two jobs have comparable skills." This articulates the standard of 10(a); it does not amount to a finding that 10(c) is not applicable because the employment as a fisherman was obtained through a friend. The ALJ explicitly stated that he found Price's testimony regarding his work as a commercial fisherman credible. Finally, the ALJ determined that Price earned $10,403.52 for his services as a commercial fisherman. Therefore, the record clearly shows the total of Price's earnings for 1978.

CONCLUSION

The Administrative Law Judge should have applied section 10(c) and considered Price's wages as a commercial fisherman. The decision of the Board is REVERSED and REMANDED to the Deputy Commissioner for determination of benefits based on average pre-injury weekly earnings of $627.88. The petitioner is entitled to attorney's fees for this appeal.